END USER SOFTWARE LICENSE AGREEMENT
CHAOS SOFTWARE LTD
END USER LICENSE AGREEMENT
PLEASE READ CAREFULLY.
The Product is licensed to You under the condition that You accept any and all terms hereof
This End User License Agreement (“Agreement”) is a legally binding agreement between Chaos Software LTD, Mladost-1A, block 548 entrance B, 2nd floor, Sofia 1729, Bulgaria, (“Company”), acting on its own behalf or on behalf of an authorized by the Company reseller, and you (either you personally if you have acquired the Product, as defined below, for yourself, or another legal entity which has acquired the Product and for which you warrant that you have the capacity and authority to bind to this Agreement) (“You” or “Licensee”).
The Product shall be authorized by a compatible license server (an ancillary license administration software used by the rendering or simulation software described hereunder, to prevent usage of unlicensed versions or copies of such rendering or simulation software, hereinafter referred to as “License Server”). The terms and conditions for the License Server shall be arranged in a separate agreement attached for your convenience as an integral part hereto.
By selecting the “I accept” button or other button or mechanism designed to acknowledge agreement to the terms of an electronic copy of this Agreement, or by installing, downloading, accessing, or otherwise copying or using all or any portion of the Product as defined below, (i) you accept this Agreement on behalf of the entity for which you are authorized to act (e.g., an employer) and acknowledge that such entity is legally bound by this Agreement (and you agree to act in a manner consistent with this Agreement) or, if there is no such entity for which you are authorized to act, you accept this Agreement on behalf of yourself as an individual and acknowledge that you are legally bound by this Agreement, and (ii) you represent and warrant that you have the right, power and authority to act on behalf of and bind such entity (if any) or yourself. You may not accept this Agreement on behalf of another entity unless you are an employee or another agent of such other entity with the right, power and authority to act on behalf of such other entity.
By accepting this Agreement you also accept, agree and guarantee that in case you provide to a third person the possibility to access or use the Product or any part of it you shall procure the said third person’s acceptance and agreement with the present Agreement otherwise such access or usage shall be deemed illegal.
By accepting this Agreement you also accept the terms and conditions for the License Server, an inseparable part hereto.
If You do not agree to any or all of the terms in the Agreement and/or the terms and conditions for the License Server, or any other applicable terms and conditions referred to as part of our relationships and/or a condition precedent for their validity, You must not download, agree to the terms and conditions, click or check a relevant button, or perform any similar act of acceptance, and/or do not use the Product.
“Computer” means (i) a single electronic device, with one or more central processing units (CPUs), that accepts information in digital or similar form and manipulates the information for a specific result based on a sequence of instructions, or (ii) a software implementation of such a device (or so-called virtual machine).
“Use” or “Using” means to access, download, execute, install, copy or otherwise benefit from using the functionality of the Product in accordance with this Agreement and/or the documentation.
“Effective Date” means the date on which You accept this clickwrap Agreement or otherwise access, download, execute or use the Product, whichever occurs first.
“Product”, as referred herein consists of (some, either of the following or all of them):
- the particular (a) V-Ray rendering OR (b) Phoenix fluid simulation software You chose to get licensed for, as may be specified and designated in the Product section of the Company’s web portal;
- VRayScannedMtl and/or BRDFScanned plug-ins (hereinafter “VRscans plug-in”) (optional); a demo version (without GUI support and with watermarks prints on materials) may be included; a complete non-restricted version of VRscans plug-in is accessible with a separate license, as defined below and shall be acquired separately;
- any other accompanying software, plug-ins and any updates or upgrades to the rendering or simulation software that Licensee may install from time to time;
- any associated files, documentation and materials, including but not limited to installation files, binary executable files, library files, configuration files and documentation files.
“Trial License” means a version of Product to be used only to review, demonstrate and evaluate the Product. The Trial License may either have limited features, and/or its free use might be limited in time.
“Trial Period” is a limited period in which Licensee is entitled to use the Product free of charge. Subject to the terms and conditions hereof, except if otherwise provided elsewhere, Company grants to Licensee the license specified below to evaluate the Product only for a term of thirty (30) days from the date Licensee downloads the Product. Trial Period may either be found in this Agreement, on Company designated web site, in the Product user-guide, or in Company’s specific instructions, in this order of prevalence.
1. LICENSE TYPE
License Type will be clearly indicated in the relevant Product section and/or supporting documentation identifying the Product as one of the following types:
a) Advanced or Commercial full, regular version of the Product for which the license is granted under the general terms of this Agreement, in return for a License fee;
b) Academic or Educational is a License limited to Your educational purposes only. Please refer to Section 18 below for further details;
c) Trial is a license to use the Product for the sole purpose to try it before starting to pay license fees. Trial versions of the Product available for Trial License usually contain all the functionality of the Advanced or Commercial regular version, but can only be used for a limited time. Upon Company’s sole discretion the Trial License version might be with reduced functionality, not allowing you to utilize it fully, it might be marked with appropriate water mark, or otherwise subject to limitations. In case of Trial License Type, special terms and conditions apply (please refer to Section 15, Trial License below), which in case of conflict with the other terms and conditions stipulated hereunder, will prevail to the extent of such conflict;
d) BETA might be available to the public or only a group(s) of users selected upon Company’s discretion, for evaluation or beta copies for which Company does not charge a license fee, the requirement to pay license fees does not apply, and additional restrictions on your use of the Product may apply. Please refer to Section 16 below for further details;
e) NFR (Not for resale) is a designation for the Product that gives right only for testing with the understanding that you will not resell the Product. NFR ensures You complete, promotional copies of the Product, generally not eligible for upgrades when they become available, and may not include technical support, whenever offered by Company. Product marked with NFR legend is identical in function and packaging to the retail version of the same Product. They are not licensed for resale, and so no license for general use is granted. Please refer to the section 17 below for further details;
f) Render Service Provider where a license to the Product is granted to operators of render farms, i.e. high performance computer systems, e.g. computer clusters, built to render computer-generated imagery, under specific conditions stipulated in additional terms and conditions concluded between you and Company.
While you are licensed any License Type, other than regular Advanced or Commercial License, regardless anything to the contrary, under such License Type additional limitations on your use of the Product may apply. In case of time-limited License Type, You may request renewal of the Agreement; however the Company keeps the right to refuse such renewal. In case the renewal is confirmed by the Company, the Agreement is deemed automatically extended for the same period and under the same terms and conditions as agreed hereby.
NOTE: such as the Agreement may be time-limited for a fixed period expiring automatically on a date specified, prohibition may be imposed to use the Product for commercial purposes, demonstration purposes, testing and evaluation of the Product and/or using the Product to design, create and test your own works ("Licensee's Works"), considering the general restrictions and limitations stipulated below.
NOTE: THIS AGREEMENT SHALL APPLY TO ALL COMPANY’S SOFTWARE PRODUCTS, UNLESS OTHERWISE PROVIDED FOR IN THE SPECIFIC LICENSE TERMS AND CONDITIONS UNDER WHICH А COMPANY’S SOFTWARE PRODUCT IS MADE AVAILABLE FOR USE, FOR EXAMPLE, THIS AGREEMENT DOES NOT APPLY TO FREEWARE LICENSE TYPE SOFTWARE, OR SOFTWARE NOT DESIGNATED UNDER THE DESCRIPTION OF PRODUCT STIPULATED IN THE PREVIOUS SECTION, WHICH IS LICENSED UNDER SEPARATE TERMS AND CONDITIONS.
2. GRANT OF LICENSE
2.1. Subject to Your full payment of the applicable license fees, if any, continuous compliance with this Agreement and the restrictions agreed between You and the Company, Company grants hereby, and You accept, a non-exclusive, non-sublicensable and non-transferable (except if the latter is permitted by applicable law) right and license:
to install the Product on as many of Your computers as You wish to, provided that You may not, as clearly stipulated hereunder in greater details, at the same time use the Product on more computers than the number of the available licenses authorized by the License Server;
to load the Product, to execute it, to use it, to transmit it to a distance, to keep it on a computer storage device;
to create a back-up copy of the Product, if that is needed for the specific use that the Software has been acquired for and You keep all copyright notices and other marks of ownership on each copy, or partial copy, of the Product. The back-up copy is for Your own internal use only and cannot be provided to any third parties;
to benefit commercially from using the Product in the authorized manner considering the restrictions in contained hereunder or in another agreement by and between the parties hereto;
SCOPE: to use the Product within the scope of the License Type, as defined below, and to use up to the number of concurrent licenses of the Product as have been licensed and paid for at any one time or for the Metered Access Service, as defined below, considering the respective applicable restrictions. The Product is in use for the duration that it keeps engaged a license from the license server;
TERRITORY: to use the Product in the country or authorized territory where You acquire the Product from an authorized reseller, unless otherwise specified by the Company or by applicable law. In case You are an individual, You may use the Product on the territory where You currently reside or temporarily stay at. In case the Product is acquired from Your head office on behalf of Your branch, the Product may be used in the territory or region where the branch is located and always provided that You have acquired the license from a Company's authorized reseller. the Product may be transferred to another country only upon Company's prior written approval.
whenever you do not choose regular Advanced / Commercial license, but You wish to be granted another specific License Type generally made available by the Company, then( unless otherwise stipulated in the Product section and/or supporting documentation) to use the Product strictly for non-commercial purposes such as (not limited to) training and demonstration purposes, testing, trial and evaluation of the Product and/or use the Product to design, create and test Your own works (“Licensee‘s Works”) considering the general and specific restrictions and limitations stipulated by the Company hereunder or elsewhere to that matter.
to use the Product as may be additionally restricted and limited by the License Type you choose, in this Agreement, the Product section and/or supporting documentation.
2.2. Available Licenses (depending on the Product You choose to be licensed) may be some, either of the following or all of them:
2.2.1. For the Product (except VRscans plug-in):
Workstation license. One Workstation license entitles You to use the graphical user interface (GUI) of the Product (except VRscans plug-in) only on one computer or another technical device, respectively, at any one time and You may use only one running copy of the Product (except VRscans plug-in) for local, distributed or network frame-by-frame rendering at any one time. The rendering can be performed either on the same machine where the GUI license is used, or on another machine in the network.
Application SDK End User license. If the Application SDK is included in the installation of Your Product, one Application SDK End User license may be included which entitles You to use the Product (except VRscans plug-in) only on one computer or another technical device, respectively, at any one time and You may use only one running copy of the Product (except VRscans plug-in) for local, distributed or network frame-by-frame rendering at any one time. The rendering can be performed either on the same machine where the Application SDK End User license is used, or on another machine in the network.
Universal Render node. One Universal Render node license entitles You to use one running copy of the Product (except VRscans plug-in) for local, distributed or network frame-by-frame rendering at any one time or by way of Metered Access Service, as defined below.
2.2.2. For VRscans plug-in:
VRscans GUI license. One VRscans GUI license entitles You to use the graphical user interface (GUI) of VRscans plug-in only on one computer or another technical device, respectively, at any one time and Licensee may use only one running copy of VRscans plug-in for local, distributed or network frame-by-frame rendering at any one time. The rendering can be performed either on the same machine where the GUI license is used, or on another machine in the network.
VRscans Render node. One VRscans Render node license entitles You to use one running copy of the VRscans plug-in for local, distributed or network frame-by-frame rendering at any one time.
2.2.3. For Phoenix Products:
GUI license. One GUI license entitles LICENSEE to use the graphical user interface (GUI) of the Product only on one computer or another technical device, respectively, at any one time.
Simulation license. One simulation license entitles LICENSEE to use one running copy of the Product for local or network fluid simulation at any one time.
2.2.4. Except for the cases of Metered Access Service as defined below, the term of each of the licenses, acquired under the Agreement, is indicated in the expiration section on the License Server status web page, and/or hereunder.
3.1. You may NOT:
make copies or otherwise reproduce the Product, except for installing it on Licensee's computers and for back-up copies as specified above;
use the Product to develop a new software product with the same or similar main function;
redistribute or give the Product away in any way (lease, rent, loan, charge, donate, exchange, share or other) to any third parties. You are not allowed to sell (except if permitted by applicable law), transfer, assign or grant access to the Product to any third party and You ensure that Product (accessed either locally or remotely) is used only by You personally, in case You are an individual, or by Your employees, on Your behalf, in case You are a legal entity, and You are responsible for compliance with the terms of this Agreement by its employees. You shall notify Company in a timely manner if You becomes aware of any unauthorized use of the whole or any part of the Product by any third party. The notification shall be made to: email@example.com;
use the Product for commercial rendering services that provide third parties with contracted/on demand rendering or simulation services, unless you acquired a render-farm license;
create any derivative works or make any translation, adaptation, arrangement and any other alteration of the Product or make any reproduction, distribution, communication, display or performance to the public of the results of such acts;
adapt or reverse compile or reverse engineer or otherwise tamper the whole or any part of the Product;
remove or alter any copyright or other proprietary notice from the Product;
use any of the Product's components, files, modules, audio-visual content, or related licensed materials separately from the Product;
use the Product in a manner that infringes any third party's copyrights or any other rights;
participate in any illegal, deceptive, misleading or unethical practices and activities, which may be detrimental to Company or the Product;
use a number of concurrent users of the Product that exceed the number of licenses acquired. Additional licenses can be added from time to time as such licenses are acquired;
use the Product or Licensee’s Works for commercial purposes, unless you acquired Advanced / Commercial or Render Service Provider License;
use the license acquired hereunder by way of Metered Access Service, unless administered by a Company certified provider of Metered Access Service. "Metered Access Service" shall mean making the Product available to end users for on-demand metered use under the licenses granted hereby by Company. The Licensee may not exceed the limit of on-demand metered use acquired under the Metered Access Service.
4. PROTECTION MECHANISMS
4.1. The Product is protected through schemes or devices to control access and permit only the number of licenses acquired to be in use at one time and to prevent usage of unlicensed copies of the Product (“Protection Mechanism”). Protection Mechanisms may include, not limited to a hardware lock ("Dongle"), license server, software license authorization key, and/or any other legally permitted technology as may be implemented from time to time by Company.
4.2. Depending on your License Type, the Product may include additional outcome restrictions including, but not limited to: resolution limitations, watermarks prints, etc.
4.3. You may not take any steps to avoid or defeat the purpose of any Protection Mechanism or to install or use the Product in a manner that circumvents or interferes with the operation of the protection mechanisms.
5. PRODUCT DELIVERY. COLLATERAL PRODUCTS
5.1. The Company will deliver the Product electronically, You have to register and download the Product from the Company's official website. In order to receive the Software license authorization key, you have to generate a provisional code from the machine where the License Server is installed, following the instructions in the furnished documentation and to provide that provisional code to the Company. The Company will further provide the respective Software License authorization key.
5.2. The Company does not warrant authenticity and the Company may not provide any warranty for products downloaded elsewhere.
5.3. The Product may be accompanied, may contain or the Company may provide from time to time other own and/or third party's software, drivers, data, documents, materials, etc. (“Collateral Products”). Collateral Products may include, be subject to or provided in accordance with other terms in addition to or different from the terms set forth in this Agreement. Unless such terms are included or referenced Collateral Products are subject to this Agreement. In case such terms apply You agree to comply with them.
5.4. You will take sole responsibility for acquiring and complying with any licenses that may be necessary to use or to use in a different way any third party's software, data, documents or other materials. You acknowledge and agree that Company has no responsibility for, and makes no representations or warranties regarding, such third party's software, data, documents or other materials or Your use of such third party's software, data, documents or other materials.
6. CONFIDENTIALITY AND NON-DISCLOSURE
6.1 The Company and You acknowledge and agree that during the Term of or in relation with this Agreement either party (the "Disclosing Party") may disclose to the other party (the "Recipient") certain business and/or technical information of a confidential and proprietary nature. "Confidential Information" means any proprietary information, trade secret (organization, structure, object or source code of the Product, etc. any API, SDKs, libraries, reference, sample code etc.) or other non-public information that Disclosing Party delivers or communicates to the Recipient or to which the Recipient otherwise gains access to under this Agreement;
6.2. Confidential information may be used only internally and only in conjunction with and for Recipient’s own authorized internal use.
6.3. Recipient shall maintain the confidentiality of the Disclosing Party’s Confidential Information and may not disclose, distribute or otherwise provide it to third parties, except in cases where such information is required by applicable law or court order and a prompt advance notice to Disclosing party has been sent to enable the latter to seek a protective order or otherwise prevent such disclosure.
7.1. You acknowledge and agree that possession, installation, or use of the Product does not transfer to You any title to the Company's intellectual property. The Company and its licensors own and retain title to and ownership of, and all other rights with respect to, the Product, THE Collateral Products, the Confidential Information and all copies thereof, including, without limitation, any related copyrights, trademarks, trade secrets, patents, and other intellectual property rights.
7.2. You are granted only such rights as expressly described in the various terms and conditions accepted hereby either directly or by reference, and You have no other rights, implied or otherwise.
7.3. APIs: You acknowledge and agree that any API information and development materials provided (a) are confidential and proprietary to the Company, (b) may not be distributed, disclosed or otherwise provided to third parties, (c) may be used only internally and only in conjunction with and for your own authorized internal use of the Product to which the API information or development materials relate, such as the development and support of applications, modules and components to operate on or with the Product, and (d) may only be Installed on the same Computer(s) where the Product is permitted to be Installed.
8. PRIVACY (IN CASE LICENSEE IS AN INDIVIDUAL)
8.1. You acknowledge and agree that in order to acquire and use the Product, You (and third parties acting on Your behalf) may have to provide, and the Company and its resellers (and third parties acting on behalf of the Company and its resellers) may acquire, certain personal information and data with respect to You. By accepting the Agreement You hereby consent to the Company processing such information and data. The Company is a data administrator and as such the Company takes appropriate technical measures to protect Your personal information and data, if any. Personal information and data provided to the Company in connection with this Agreement may be processed in Bulgaria or any other country in which the Company or its subsidiaries, affiliates or resellers maintain facilities. By acquiring the Product, You consent to the transfer of such information outside of Your country under terms and conditions which ensure the fair protection of data subject’s rights. In any case such personal information and data will be processed only for the purposes of this Agreement and for the time it is effective, unless the applicable laws provide otherwise, in which case the wider limits imposed or implied by law will prevail. Any premature revocation or repudiation of data subject’s consent entitles the Company to immediately terminate any associated rights and/or obligations which the Company at its free discretion may consider will not be able to further fulfil.
8.2. Personal information and data may be processed only for the performance of this Agreement, for administration and authentication purposes necessary for the execution of the Agreement, compliance with a legal obligation or to respond to support inquiries.
9. LIMITED WARRANTY
9.1. YOU MAY, WITHIN FOURTEEN (14) DAYS FROM THE DATE OF ACQUISITION, RETURN THE PRODUCT TO THE COMPANY OR ITS AUTHORIZED RESELLER FROM WHICH THE PRODUCT WAS ACQUIRED, FOR A REFUND NOT EXCEEDING THE RELEVANT LICENSE FEE PAID, IF ANY.
9.2. THE COMPANY WARRANTS THAT FOR A PERIOD OF NINETY (90) DAYS FROM THE DATE WHEN YOU ACQUIRE THE PRODUCT (WARRANTY PERIOD), THE PRODUCT WILL PERFORM SUBSTANTIALLY IN ACCORDANCE WITH THE CORRESPONDING DOCUMENTATION WHEN PROPERLY USED. THIS LIMITED WARRANTY DOES NOT APPLY TO SOFTWARE OR SUPPORT OR ANY OTHER SERVICES NOT PART OF THE PRODUCT, WHICH THE COMPANY, AT ITS SOLE DISCRETION, MAY PROVIDE FROM TIME TO TIME, AND WHICH ARE MADE AVAILABLE ON AN AS-IS BASIS WITHOUT ANY WARRANTY OF ANY KIND INCLUDING, NOT LIMITED TO PRE-RELEASED SOFTWARE, UNSTABLE VERSIONS, BETA, TRIAL, EVALUATION, OR NOT-FOR-RESALE COPIES, ANY SOFTWARE MADE AVAILABLE BY THE COMPANY FOR FREE.
9.3. THIS LIMITED WARRANTY IS VOID IF FAILURE IN PERFORMANCE OR DEFECT OF THE PRODUCT RESULTED FROM YOUR NEGLIGENCE, ABUSE, MISUSE, AMENDMENT OR ATTEMPTED AMENDMENT OF THE PRODUCT FORM THIRD PARTY OTHER THAN THE COMPANY, ACCIDENT, IMPROPER OR UNAUTHORIZED USE OF THE PRODUCT OR MATERIAL BREACH OF THIS AGREEMENT. ALL WARRANTY CLAIMS MUST BE MADE WITHIN THE WARRANTY PERIOD TO THE RESELLER FROM WHICH YOU ACQUIRED THE PRODUCT OR TO THE COMPANY, ALONG WITH PROOF OF ACQUIREMENT.
9.4. THE ENTIRE LIABILITY OF THE COMPANY RELATED TO ANY WARRANTY CLAIM AND YOUR SOLE AND EXCLUSIVE REMEDY UNDER ANY WARRANTY WILL BE LIMITED TO EITHER, AT THE COMPANY'S DISCRETION, (I) TO USE REASONABLE EFFORTS TO CORRECT DEFECTS OR WORK AROUND ERRORS, PROVIDED THAT YOU MAKE AVAILABLE TO MAXIMUM EXTENT POSSIBLE ALL THE INFORMATION THE COMPANY MAY NEED TO RECREATE AND CORRECT THE DEFECT OR FAULT OR IF SUCH EFFORTS FAIL OR ARE UNPRACTICAL (II) TO REFUND THE LICENSE FEES, IF ANY, PAID BY YOU AND TERMINATE THIS AGREEMENT. SUCH REFUND IS SUBJECT TO THE RETURN, DURING THE WARRANTY PERIOD, OF THE PRODUCT. THE LIMITED WARRANTY SET FORTH GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY HAVE ADDITIONAL LEGAL RIGHTS UNDER APPLICABLE LAW. COMPANY DOES NOT SEEK TO LIMIT YOUR WARRANTY RIGHTS TO ANY EXTENT NOT PERMITTED BY LAW.
10.1. THE FOREGOING EXPRESS LIMITED WARRANTY IS IN LIEU OF, AND LICENSEE ACKNOWLEDGES AND AGREES THAT COMPANY DISCLAIMS TO THE MAXIMUM EXTENT PERMITTED BY LAW, ALL OTHER WARRANTIES, TERMS, REPRESENTATIONS, OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED (WHETHER BY STATUTE, LAW, CUSTOM, USAGE OR OTHERWISE) INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SECURITY OR NONINFRINGEMENT. THE FOREGOING LIMITED WARRANTY IS FURTHER NOT ENLARGED OR OTHERWISE AFFECTED BY COMPANY'S RENDERING OR ANY SUPPORT SERVICES OR TECHNICAL OR OTHER ADVICE OR COMMUNICATION IN CONNECTION WITH THE PRODUCT OR ITS USE. WITHOUT LIMITING THE FOREGOING DISCLAIMER, COMPANY DOES NOT WARRANT THAT PRODUCT WILL MEET LICENSEE'S EXPECTATIONS, THAT THE PERFORMANCE OR OUTPUT OF THE PRODUCT WILL BE UNINTERRUPTED, ERROR-FREE, ACCURATE, RELIABLE, OR COMPLETE NOR THAT DEFECTS OR FAULTS WILL BE CORRECTED. THE PRODUCT IS NOT A SUBSTITUTE FOR PROFESSIONAL JUDGMENT OR INDEPENDENT TESTING OF PHYSICAL PROTOTYPES FOR PRODUCT STRESS, SAFETY AND UTILITY. NOTHING IN THE FOREGOING RESTRICTS THE EFFECT OF WARRANTIES OR CONDITIONS WHICH MAY BE IMPLIED BY LAW WHICH CANNOT BE EXCLUDED, RESTRICTED OR MODIFIED BY A CONTRACTUAL RESTRICTION.
10.2. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN ANY TERMS AND CONDITIONS AGREED TO HEREBY, EITHER DIRECTLY OR BY REFERENCE, THE COMPANY DOES NOT WARRANT UNINTERRUPTED OR ERROR-FREE OPERATION OF THE PRODUCT, AND THAT THE COMPANY WILL CORRECT ALL DEFECTS. THE USE OF THE PRODUCT IS AT USER'S SOLE RISK. UNLESS THE COMPANY SPECIFIES OTHERWISE, IT PROVIDES THIRD PARTY PRODUCTS WITHOUT WARRANTIES OF ANY KIND. HOWEVER, THEIR RESPECTIVE MANUFACTURERS, DEVELOPERS, SUPPLIERS, OR PUBLISHERS MAY PROVIDE THEIR OWN WARRANTIES.
10.3. SPECIFIC DISCLAIMER APPLICABLE ONLY TO LICENSE TYPES, SUCH AS TRIAL, ACADEMIC, BETA, NFR, DEMO, LABS OR PRE-RELEASE, OR MADE AVAILABLE AS “FREE” IN OTHER TESTING MODE, OR WITHOUT REQUIREMENT OF PAYMENT, ETC., FOR WHICH THE LIMITED WARRANTY AND THE DISCLAIMER IN THE PREVIOUS SECTIONS DO NOT APPLY: IT IS UNDERSTOOD THAT THE PRODUCT, AND ANY UPDATES MAY CONTAIN ERRORS AND ARE PROVIDED FOR LIMITED EVALUATION ONLY. LICENSEE ACKNOWLEDGES AND AGREES THAT THE PRODUCT, ANY SOFTWARE OR SUPPORT OR OTHER SERVICES ARE MADE AVAILABLE ON AN AS-IS BASIS WITHOUT ANY WARRANTIES OF ANY KIND AND COMPANY DISCLAIMS TO THE MAXIMUM EXTENT PERMITTED BY LAW, ALL WARRANTIES, TERMS, REPRESENTATIONS, OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED (WHETHER BY STATUTE, LAW, CUSTOM, USAGE OR OTHERWISE) INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SECURITY OR NONINFRINGEMENT. COMPANY DOES NOT WARRANT THAT PRODUCT WILL MEET LICENSEE’S EXPECTATIONS, THAT THE PERFORMANCE OR OUTPUT OF THE PRODUCT WILL BE UNINTERRUPTED, ERROR-FREE, ACCURATE, RELIABLE, OR COMPLETE NOR THAT DEFECTS OR FAULTS WILL BE CORRECTED. THE PRODUCT IS NOT A SUBSTITUTE FOR PROFESSIONAL JUDGMENT OR INDEPENDENT TESTING OF PHYSICAL PROTOTYPES FOR PRODUCT STRESS, SAFETY AND UTILITY. NOTHING IN THE FOREGOING RESTRICTS THE EFFECT OF WARRANTIES OR CONDITIONS WHICH MAY BE IMPLIED BY LAW WHICH CANNOT BE EXCLUDED, RESTRICTED OR MODIFIED BY A CONTRACTUAL RESTRICTION.
11. LIMITATIONS OF LIABILITY
11.1 IN NO EVENT WILL COMPANY OR ITS LICENSORS BE LIABLE (DIRECTLY OR INDIRECTLY) TO YOU OR ANY OTHER THIRD PARTY FOR ANY LOSS, DAMAGES, CLAIMS, OR COSTS WHATSOEVER INCLUDING, NOT LIMITED TO ANY INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL, PUNITIVE DAMAGES OR DAMAGES FROM BUSINESS INTERRUPTION, LOSS OF PROFITS, REVENUE, BUSINESS OR DATA, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, DAMAGES, CLAIMS, OR COSTS. YOU ACKNOWLEDGE AND AGREE THAT IN ANY EVENT THE AGGREGATE LIABILITY OF COMPANY AND ITS LICENSORS ARISING OUT OF OR IN CONNECTION TO THIS AGREEMENT AND ANY COMPANY'S PRODUCT OR SERVICE WILL BE LIMITED, EXCEPT FOR REMEDIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER LAW, TO THE AMOUNT PAID, IF ANY, BY YOU FOR SUCH PRODUCT OR SERVICE, EVEN IF THAT AMOUNT MAY BE SUBSTANTIALLY DISPROPORTIONATE TO THE REMEDY CLAIMED. COMPANY DOES NOT SEEK TO LIMIT ITS WARRANTY OR REMEDIES TO ANY EXTENT NOT PERMITTED BY LAW.
12. TERM AND TERMINATION
12.1. The Agreement is not limited with any term and is effective until terminated, unless, as of the time the Product is acquired, the Agreement is time-limited with a fixed expiration period as may be specified on the License Server webpage, in the relevant Product section and/or supporting documentation and/or elsewhere publicly available with clear and disambiguous language.
12.2. The term of each of the licenses, acquired under the Agreement, is indicated in the expiration section on the License Server status web page.
12.3. You may terminate the Agreement at any time by returning and/or destroying the Product, related documentation and all copies thereof.
12.4. The Agreement will terminate immediately without notice from the Company if You fail to comply with any provision of the Agreement.
12.5. Upon the termination of the Agreement for whatsoever reason, You must cease all use of the Product and destroy all copies, full or partial, of the Product.
12.6. Sections concerning LIMITATIONS/RESTRICTIONS, CONFIDENTIALITY AND NON DISCLOSURE, OWNERSHIP, PRIVACY, LIMITED WARRANTY, DISCLAIMER, LIMITATIONS OF LIABILITY, and OTHER PROVISIONS will survive the termination of this Agreement, howsoever caused, and this will not imply or create any continued right for You to use the Product or any part of the Product after termination of this Agreement.
13. OTHER PROVISIONS
13.1. This Agreement, including the formation, interpretation, breach or termination thereof, will be governed by and construed in accordance with the laws of the Republic of Bulgaria, without regard to its conflict of law rules and principles. The UN Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transaction Act shall not apply to (and are excluded from the laws governing) this Agreement. The parties to this Agreement shall each use commercially reasonable efforts to settle any dispute, controversy or claim arising out of or relating to this Agreement. If no solution is achieved within sixty (60) days of a party’s written notice of a dispute, You agree that any claim, action or dispute arising under or relating to this Agreement will be brought exclusively in (and the parties will be subject to the exclusive jurisdiction of) the for resolution to the Court of Arbitration of the Bulgarian Chamber of Commerce and Industry in Sofia, Bulgaria, and be resolved, enforced and further executed in accordance with court rules then in effect and any other laws then in force throughout the Republic of Bulgaria, except that if You are an individual or for any other reason arbitration may not apply to You, any such claim or dispute will be brought exclusively in (and the parties will be subject to the exclusive jurisdiction of) the competent court in Pleven, Bulgaria, and subject to appeal before the relevant appeal court and court of cassations. The parties to this Agreement waive any other venue to which either party might be entitled by domicile or otherwise. Nothing in the foregoing will prevent Company from bringing an action for infringement of intellectual property rights in any country where such infringement is alleged to occur. You will be considered to have received the Product and subscribed to a service based on the governing law agreed hereunder, regardless of where the Product and the service are delivered or accessed. Licensee may not assign this Agreement or any rights hereunder (whether by purchase of stock or assets, merger, change of control, operation of law, or otherwise) without Company's prior written consent, which may be withheld at Company's sole and absolute discretion, and any unauthorized purported assignment by You will be void. You acknowledge and agree that Company may assign or sub-contract any of its rights or obligations under this Agreement.
13.2. In the event any of the terms of the Agreement is declared void because it conflicts with the applicable law, the rest of the terms and the Agreement as a whole will remain in full effect. Such invalid term will be superseded by the legal provisions.
13.3. Any amendment or modification of the Agreement shall only be made by an additional agreement made in writing between the parties (annex) and signed by both of them.
13.4. No term or provision of this Agreement will be considered waived, and no breach excused, unless such waiver is in writing signed on behalf of the party against which the waiver is asserted. No waiver (whether express or implied) will constitute consent to, waiver of, or excuse of any other, different, or subsequent breach.
13.5. The Company will not be liable for any loss, damage or penalty if Product is not performing or Licensee is not able to use any or all of the Product's features due to a force majeure (including, but not limited to short-circuits, power outages, internet network malfunctions, administrative limitations and others such as a war, strike, riot, crime, or an event described by the legal term "act of God" e.g., flooding, earthquake, etc.) or other causes beyond Company's reasonable control.
13.6. The Company shall keep the right to make and have implemented, from time to time, any changes, improvements and corrections it deems necessary of the Product hereunder, as long as such change, improvement or correction does not affect the Products main function (rendering of 3d models or computational fluid dynamics simulations of smoke, fire and liquid effects)) and does not qualify as a new product.
13.7. Company may contact You with relevant product information or marketing communications, such as newsletters. Such communications contain instructions how Licensee can opt-out in case Licensee does not wish to continue receiving them.
13.8. Тhe Product may contain technology to collect anonymous usage data, including but not limited to render or simulation times, settings and used features. Usage data will not contain any information that may be used to identify You or your work personally. However, such technology may inadvertently collect information which may identify you as an individual or organization, in which case the data privacy rules in the relevant section above will apply. Usage data will be collected only after explicit authorization by You and can be reviewed and disabled by You at any time. Usage data in raw or aggregated form may be transmitted to third party servers over the Internet, which may be or may be not under control of the Company. The Company may generate and publish summary reports based on the anonymous data obtained. Such reports may be made available in machine readable format to third parties for further analysis, generally, for the purposes of improving the quality of the Product and the services provided by the Company to You or the public.
13.9. The Company uses tools to collect information about Your preference and behavior in order to deliver certain features and extensions related to the Product, identify trends and bugs, collect usage statistics and track other data related to Your use of the Product, as may be instructed from time to time by the Company. By accepting this Agreement, You consent to collection, processing, use and transfer of data in the manner and for the purposes set out in this Agreement.
13.10. The Company may use various technologies to collect and store information when you use the Product, and this may include using cookies or similar technologies to identify Your copy of the Product.
13.12. This Agreement and any other terms referenced in this Agreement, as may be amended from time to time by the Company on its sole discretion, represent the complete and entire agreement between the parties regarding the subject matter hereof and supersede any and all prior proposals, agreements, representations and understandings between the parties, whether written or oral, regarding the subject matter hereof. The Product is licensed to You only upon condition that You accepts all of the terms and conditions contained and/or referenced herein. This is a license agreement and not an agreement for sale.
13.13. Headings used in this Agreement are provided for convenience only and shall not be used to construe meaning or intent.
13.14. V-Ray and the V-Ray logo, Phoenix FD and the Phoenix FD logo, and ChaosGroup and ChaosGroup logo are registered trademarks of Chaos Software Ltd. All other brand names, product names, or trademarks belong to their respective holders.
13.15. Notices in connection with this Agreement will be in writing and will be sent by postal service or a delivery service. Notices will be effective when delivered and received by the Company at Company's head office address, which currently is: Chaos Software Ltd., Mladost-1A, 147, Tsarigradsko shosse, 4th floor, 1784 Sofia, Bulgaria.
14. SPECIAL TERMS AND CONDITIONS FOR ADVANCED / COMMERCIAL LICENSE
14.1. The terms and conditions of this Agreement which are not clearly referred to as applicable only to specific License Type(s) will apply to all License Types, including but not limited to Advanced / Commercial License Type.
15. SPECIAL TERMS AND CONDITIONS FOR TRIAL LICENSE
15.1. Licensee may download а Trial License version for evaluation and, thereafter, if Licensee liked the Product, order license under the terms and conditions stipulated above, i.e. Licensee can try the Product before starting to pay a license fee. Even though a license fee is not paid for the Trial License, it does not mean that there are no conditions for using the Product under Trial License. These additional and specific terms contained in this Section “Trial License” will apply whenever Licensee chooses to use the Product under Trial License.
15.2. The Product under Trial License can be either a fully- functional, time-limited version, or a feature-limited version, or a combination of these two types. Detailed description of the Trial License restrictions might be found hereunder, on a designated Company web site and/or on the Product user-guide.
15.3. Subject to Licensee’s full and continuous compliance with this Agreement and the restrictions stipulated anywhere in this Agreement, Company grants, and Licensee accepts, a non-exclusive, non-sublicensable and non-transferable (except if the latter is permitted by applicable law) right and license for mere evaluation purposes only. Licensee is authorized to install, copy, and use the Product for the sole purpose of testing its functionality.
15.4. The product under this license type is provided free of charge only until it is a trial license. Continuous use of the product following expiration of the trial period, or any attempt to use the product following expiration of the trial period, are allowed only after payment in full of the attributable license fees. The specifics of the trial license exclude any refund request(s) concerning any linked license or otherwise referred license purchased for the purpose of using it together with the product. Inter alia, if a trial license is a time-limited, fully-functional version, allowing licensee to see and test all the features, licensee refund request will be declined if based on trial license claims concerning absence of certain feature(s) or if any feature doesn’t work as licensee expected it to work. All other refund cases, if any, are regulated by company warranty and limitation of liability policy.
15.5. Licensee may not, in addition to any other restrictions contained elsewhere:
use the Product without payment of the attributable license fees after expiration of the Trial License.
benefit commercially from using the Product in the authorized manner.
15.6. The Trial License may be limited with a term and will be effective until terminated or Licensee chooses to use the Product under the standard terms and conditions for the Product, in return for a license fee, stipulated in the other sections of this Agreement, whichever occurs earlier.
15.7. Licensee may terminate the Agreement at any time by returning and/or destroying the Product, related documentation and all copies thereof.
15.8. Company may terminate the Agreement at any time. the Agreement will terminate immediately without notice from Company if Licensee fails to comply with any provision of the Agreement.
15.9. Upon the termination of the Agreement for whatsoever reason, Licensee will cease all use of the Product and destroy all copies, full or partial, of the Product.
15.10. Unless at the end of the Trial Period Company decides to extend the Trial Period or Licensee elects to be licensed the Product in return for applicable fee, Licensee accepts to immediately stop using the Product and return and/or destroy the Product, related documentation and all copies thereof. If Licensee retains the Product after the end of the Trial Period, Company will consider that Licensee chose to be licensed the Product in return for an applicable fee, under the terms and conditions of the standard EULA for this Product. Payment of the applicable fees is due as from the day immediately following the end of the Trial Period, as instructed in details in the relevant invoice(s).
15.11. Sections (LIMITATIONS/RESTRICTIONS) (CONFIDENTIALITY AND NON-DISCLOSURE) (OWNERSHIP), (PRIVACY), (LIMITED WARRANTY), (DISCLAIMER), (LIMITATIONS OF LIABILITY) (OTHER PROVISIONS) will survive the termination of this Agreement, howsoever caused, and this will not imply or create any continued right for Licensee to use the Product or any part of the Product after termination of this Agreement.
16. SPECIAL TERMS AND CONDITIONS FOR BETA LICENSE
16.1. Whenever You are provided a Beta License Type for a Product, You acknowledge, understand, recognize and agree that the Product, and any of its updates may contain errors, AND ARE PROVIDED TO YOU FOR LIMITED EVALUATION PURPOSES ONLY.
16.2. Under this License Type You may not use the Product or Licensee’s Works for commercial purposes, unless a specific agreement with the Company is reached on that. The specific agreement may be replaced by a relevant statement of the Company stipulated on the beta section of the Product "Commercial Purposes" means, not limited to, to: sell, charge, accept payment in any form or other compensation for the usage of the Product, Licensee’s Works or parts of Licensee’s Works produced with the Product.
16.3. Offerings identified as “Beta”, “Labs” or “Pre-Release” or made available as “free” in other testing mode, or without requirement of payment for any other Company product (“Free Products”, in the meaning of products provided without obligation for payment or any additional consideration, other than receiving Feedback, or other valuable consideration which tangible value may not be easy to estimate), may be subject to additional terms and conditions that appear in connection with Your use of the free Products and are incorporated into these Terms by reference. For example, when You are offered Beta Products License Type:
You are entitled to participation based on Your commitment to participate and test the Product, where lack of sufficient participation is a good and sufficient cause for the Company to remove You from the Beta target group and Your access and use of the Product;
Generally, You may use Product solely for Your internal, non-productive business purposes, and solely: (a) to evaluate the technical and commercial viability of the Product; (b) to evaluate the reliability and functionality of the Product in a working environment; (c) to determine whether the features of the Product perform as designed and are useful; (d) to determine whether the Product will work for its intended purpose; and (e) to create and provide to the Company voluntary suggestions and technical feedback regarding the Product, including suggestions regarding viability and functionality of the Product. If You submit feedback or suggestions about the Product, Company may use Your feedback or suggestions without obligation to You
16.4. You may report to the Company for any and all functional flaws, errors, anomalies, bugs and other problems directly or indirectly associated with the Product known to or discovered by you. You agree that the contents of such reports to the Company, provided either in written or oral form, and any other materials, information, ideas, concepts, suggestions, improvements, know-how and the like ("Feedback") provided by you (including corrections to problems in the Product and documentation) become property of Company. You agree to assign, and hereby assign, all right, title, and interest worldwide in the Feedback and the related intellectual property rights to Company, and agree to assist Company, at Company’s expense, in perfecting and enforcing such rights. Company may disclose or use Feedback for any and all business purposes whatsoever without any obligation to you. Under no circumstances will Company become liable for any payment to you for any Feedback that you have provided, whether concerning the Product or otherwise, no matter how such Feedback is used or exploited by Company. “Feedback” means any suggestions, feedback, improvement requests or other recommendations You or Your Users provide, relating to the Product. Chaos will have (and You grant) a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate any Feedback. Under no circumstances Feedback may be considered Confidential Information.
16.5. You acknowledge and agree that possession, installation, use of the Product or Feedback submission does not transfer to You any title to the Company‘s intellectual property. The Company and its licensors own and retain title to and ownership of, and all other rights with respect to, the Product, the Collateral Products, the Confidential Information, Feedback and all copies thereof, including, without limitation, any related copyrights, trademarks, trade secrets, patents, and other intellectual property rights.
17. SPECIAL TERMS AND CONDITIONS FOR NFR LICENSE
17.1. Whenever You are provided a NFR License Type for a Product, You acknowledge, understand, recognize and agree that it is s a designation for the Product that gives You right only for testing and demonstration purposes, with the understanding that you will not resell the Product.
17.2. NFR ensures You complete, promotional copies of the Product, generally not eligible for upgrades when they become available, and will not include technical support, whenever offered by Company, unless otherwise clearly stated by the Company in the relevant Product section.
17.3. Product marked with NFR legend are not licensed for resale, and so no license for general use is granted.
18. SPECIAL TERMS AND CONDITIONS FOR EDUCATIONAL/ ACADEMIC LICENSE
18.1. Whenever You are provided an Educational, also referred to as Academic, License Type for a Product, You acknowledge, understand, recognize and agree that it is a License limited to Your educational purposes, and is only available for licensees that are academic or educational institutions or individuals that are students or educators.
18.2. Academic or educational institutions are defined as those dedicated to education, including public and private universities, colleges, junior colleges, elementary, middle, high schools, and technical schools which are accredited by a state or other appropriate governmental agency or organization.
18.3. Student/ educator is a person who can confirm enrollment/ employment at a degree-granting educational institution.
18.4. The Company may decide not to charge a full license fee and this will be clearly indicated in the relevant Product section.
19. SPECIAL TERMS AND CONDITIONS FOR RENDERFARM LICENSE
19.1 Whenever You are provided a license for use of the Product for commercial renderfarm services, an additional agreement supplementing and amending the present Agreement will be signed with You.